Cecily Zamora
In South Carolina, there is no such thing as common law separation. The state does not recognize legal separations, and couples are either legally married or unmarried, with no in-between. When spouses separate, it simply means that they are living apart from one another in different homes. However, an Order of Separate Maintenance and Support can be obtained, which provides specific details regarding child custody, visitation, and support arrangements, as well as the maintenance of marital assets and debts. This order can help protect each spouse's financial interests and the needs of minor children during the separation period. It is important to note that even with this order, the spouses are still legally married, and dating during this time could be considered adultery and negatively impact the final divorce settlement.
Can you get common law separated in SC?
| Characteristics | Values |
|---|---|
| Recognition of legal separation | No |
| Marital status | Married or divorced, no in-between |
| Order of Separate Maintenance and Support | Recognized |
| Order of Separation | Recognized |
| Adultery during separation | Yes |
| Child support | Court-ordered, based on income |
| Support continuation | Until child is 18 and has finished high school or in exceptional cases |
| Visitation schedule | Decided by judge if parents cannot agree |
| Mediation | Required if couples cannot agree to settle |
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What You'll Learn
- There is no such thing as 'common-law separation' in South Carolina
- Orders of Separate Maintenance and Support are available in South Carolina
- Adultery during separation can negatively impact divorce proceedings
- Child support, custody and visitation rights are determined by the court
- Mediation is required for couples who cannot agree on a settlement
There is no such thing as 'common-law separation' in South Carolina
There is No Such Thing as Common-Law Separation in South Carolina
In South Carolina, there is no such thing as common-law separation. The state does not recognise "legal separation", and there is no "separation-agreement-filed-with-court" as part of the divorce process. Instead, couples are either "married" or "divorced", with no middle ground. Even when divorce proceedings have started or a couple has filed for separation, they are still legally married until the divorce papers are signed.
Orders of Separation
While South Carolina does not recognise legal separation, couples can get an Order of Separation from the court, which has a similar effect. This order requires couples to live apart in different homes for at least a year before a divorce is granted. An Order of Separation can be obtained when a couple intends to seek a no-fault divorce but has not yet lived apart for a year.
Adultery
Dating during the separation period before a divorce is finalised is considered adultery, which can negatively impact alimony, property division, and other aspects of the final settlement. Adultery is also a ground for a "fault divorce" in South Carolina.
Child Support and Maintenance
During the separation period, couples can create their own maintenance or support agreement, either on their own or with the help of a mediator. This agreement must then be submitted to a judge for approval. The judge will ensure that the agreement is fair and meets the children's best interests, if there are any. An Order of Separate Maintenance and Support can protect each spouse's financial interests and the financial needs of minor children during the separation.
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Orders of Separate Maintenance and Support are available in South Carolina
In South Carolina, there is no such thing as "legal separation". Instead, the South Carolina Family Courts issue Orders of Separate Maintenance and Support. These orders provide specific details regarding child custody, visitation, and support arrangements, as well as the maintenance of marital assets and the payment of marital debts. These orders are typically issued at a temporary hearing that can be scheduled early in a divorce case or filed as a separate action.
To file for an Order of Separate Maintenance and Support, one of the spouses, the plaintiff, must file a Summons and Complaint for an Order of Separate Maintenance and Support, a Notice and Motion for Temporary Relief, and have them served to the other spouse, the defendant. The defendant then has 30 days to respond to the complaint and file a counterclaim. The court will then schedule a temporary hearing, where it will decide on the issues, often based on affidavits submitted by each party.
The Order of Separate Maintenance and Support remains in effect until a Settlement Agreement that resolves all issues is reached or until the final hearing in the divorce proceedings. This order is not a requirement for a divorce, but it can help spouses protect their financial interests and resolve visitation and custody issues during the separation period. It is important to note that even with this order in place, the couple is still considered legally married, and dating other people could be considered adultery.
In South Carolina, child support is set based on guidelines that consider the income of both parents, with additional factors such as alimony, the number of other children in the home, health insurance, child care costs, and extraordinary medical expenses also being taken into account. Support generally continues until the child is 18 and has finished high school or until the end of the school year in which the child turns 19, but can continue beyond that in exceptional circumstances.
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Adultery during separation can negatively impact divorce proceedings
Firstly, adultery can affect alimony or spousal support. In South Carolina, adultery laws may favor the spouse filing for divorce due to infidelity. A judge may have the discretion to assign a larger percentage of marital assets and less marital debt to the spouse harmed by adultery. Additionally, the adulterous spouse may not be entitled to receive alimony or may receive a reduced amount. This is because adultery can impact the economic status of the spouses, leading to financial hardship for the innocent party.
Secondly, adultery can influence the division of property in a divorce. While courts generally aim for a fair division to ensure both parties maintain a similar lifestyle, adultery may be a factor in certain cases. If an affair directly contributed to an undue financial burden, such as significant credit card debts or depleted joint savings, it could impact the division of assets and debts.
Thirdly, adultery can impact child custody arrangements. While the court's primary consideration is the child's best interests, a parent's behavior, including adultery, could be taken into account. If a parent consistently prioritizes relationships over their child's well-being, it could negatively affect custody decisions. Additionally, children over 12 may express their preferences, which a judge may consider if influenced by awareness of a parent's adultery.
Finally, adultery can create communication obstacles and emotional challenges during divorce proceedings. The non-cheating spouse may feel wronged and unwilling to negotiate, while the adulterous spouse may feel ashamed and scared, making options like mediation or collaboration difficult. As a result, adultery can prolong the divorce process and potentially impact the final settlement.
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Child support, custody and visitation rights are determined by the court
In South Carolina, there is no such thing as legal separation; couples are either "married" or "divorced", with no in-between. However, the state's family courts issue Orders of Separate Maintenance and Support, which provide specific details regarding child custody, visitation, and support arrangements until the divorce is finalised.
Child support, custody, and visitation rights are determined by the court, with the child's best interests at the centre of any custody proceeding. South Carolina differentiates between physical custody and legal custody. The parent with primary physical custody, or "custodial parent", is responsible for the child's day-to-day care and lives in the same household as the child. The non-custodial parent has visitation rights and is usually responsible for paying child support.
In most cases, parents share legal custody unless it is not in the child's best interests. Even when parents share legal custody, if they cannot agree on a matter, the primary custodial parent has the right to make the final decision. When one parent has sole legal and physical custody, the non-custodial parent still has the right to access the child's medical or educational records and participate in and attend the child's school activities, unless expressly prohibited by court order.
The court may also grant visitation or custody to a de facto custodian if it finds clear and convincing evidence that the child's natural parents are unfit or that other compelling circumstances exist. Visitation schedules presented in family court must be practical, age-appropriate, and made with the child's needs as a priority. The court will not consider a lack of visitation as a reason to alter child support payments, but shared parenting may be a reason to recalculate child support based on visitation.
Child support is based on the income of both parents and is usually paid until the child is 18 and has finished high school, or at the end of the school year in which the child turns 19. Support can continue in exceptional situations, such as college or if the child is disabled.
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Mediation is required for couples who cannot agree on a settlement
In South Carolina, there is no such thing as a "legal separation". The state does not recognise any in-between status where a couple is neither married nor divorced. Instead, couples who are no longer living together are simply considered to be "married" until their divorce is finalised.
Despite this, there are still some legal options available for couples who are living apart but have not yet divorced. One such option is an Order of Separation, which can be obtained once a couple starts living in separate residences. This order helps to speed up the divorce process by addressing major issues, such as asset and debt division, before the divorce is finalised.
Another option is an Order of Separate Maintenance and Support, which can be requested by either spouse and provides specific details regarding child custody, visitation, and support arrangements, as well as the maintenance of marital assets and debts. This type of order can help protect each spouse's financial interests and the financial needs of any minor children during the separation period.
In cases where couples cannot agree on a settlement, mediation is required. A mediator can help the couple reach an agreement and draft a separation or settlement agreement, which can then be submitted to a judge for approval. The judge will ensure that the agreement is fair to both parties and meets the best interests of any children involved.
It is important to note that even with these orders in place, dating during the separation period can be considered adultery, as the couple is still legally married. This can negatively impact the final settlement, including alimony and property division. Therefore, it is crucial to understand the laws and legal requirements in South Carolina before starting the divorce process.
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Frequently asked questions
South Carolina does not recognise legal separations. Couples are either legally married or unmarried, with no in-between. When a couple separates, it only means that they are living apart from one another in different homes.
South Carolina requires couples to live separately for one year before divorcing in order to obtain a no-fault divorce.
Couples must live apart to get an Order of Separation. Once the couple has lived apart for a year, they can finalise the divorce at a final hearing.
Even when not living with your spouse, you are still legally married under South Carolina law. Dating during this time can be considered adultery and negatively impact alimony, property division, and other aspects of the final settlement.
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